Partha Sarthy, J.—Heard learned counsel for the appellant and learned counsel for the respondent nos. 1 and 2.

2. The instant appeal has been preferred against the judgment dated 9.5.2017 passed in Claim Case no. 196 of 2011 by the learned 11th Additional District and Sessions Judge- cum- M.V.A Claim Tribunal, Muzaffarpur, whereby the claim petition filed by the mother and brother of the deceased Neeraj Kumar was decided by the learned Tribunal and the Oriental Insurance Company Limited (‘the Insurance Company’ in short) was directed to pay a total compensation to the tune of Rs. 88,20,454/ to the claimants within two months along with interest thereon at the rate of 6% per annum from the date of filing till the date of realization.

3. The relevant facts in brief are that on 7.2.2011 at about 11.30 pm the deceased Neeraj Kumar, an Engineer along with others was going on a Bolero vehicle bearing registration no. MP 19T 2654. On reaching the place of occurrence, as a result of the rash and negligent driving by the driver, the vehicle in question overturned as a result of which Neeraj Kumar was seriously injured. He died on way to the hospital. An FIR being Civil Lines P.S. Case no. 56 of 2011 was registered on 14.2.2011 under sections 239 and 337 of the Indian Penal Code.

4. It is the case of the appellants that the deceased was aged about 27 years at the time of the accident. He was an Engineer drawing a monthly salary of Rs. 76,821/-. As a result of the accident and premature death, applicants/claimants who are the mother and brother of the deceased suffered mental pain, agony and were in deep shock. They filed a claim for payment of Rs.1,66,43,264/ as compensation with interest thereon at the rate of 10%. On notice although the owner of vehicle did not appear, the insurance company appeared through its counsel. The matter was heard by the learned tribunal who by judgment dated 9.5.2017 was pleased to order and direct the insurance company to pay a total compensation amount of Rs.88,20,454/- to the claimants within two months with interest thereon at the rate of 6% per annum. The Insurance Company has preferred this appeal against the said judgment and order dated 09.05.2017.

5. The claimants who are respondent nos. 1 and 2 in the instant appeal have appeared through their counsel and have opposed the instant appeal. It is submitted that the calculation of the amount of compensation which the Insurance Company is liable to pay has been done by the learned tribunal on page no. 9 of its judgment. From the details of the calculation it would transpire that in addition to the basic pay and D.A. of 43% the learned tribunal in calculating the salary of the deceased has added ‘Local Allowance 10%’ which comes to Rs.2642/ and other allowance which comes to Rs.12,945.80.

6. Learned counsel for the appellant relying on the judgment in the case of Gestetner Duplicators (Pvt.) Ltd. vs. Commissioner of Income Tax, West Bengal (AIR 1979 SC 607) and Sarita Rai vs. Ramayan Singh [2018(2)PLJR 462 : 2018 (1) BLJ 106] submits that it has been held therein that salary under Rule 2(h) of the Income Tax Act includes dearness allowance if the terms of the employment so provided but excludes all other allowances and perquisites. It is thus submitted that the learned tribunal has committed an error in including local allowance of 10% to the tune of Rs.2642/ and other allowance to the tune of Rs. 12945.80 as part of the salary of the deceased. Learned counsel further submits that although the salary of the deceased is taxable, the tax payable has not been deducted which ought to have been deducted in calculating the annual income of the deceased. In support of his contention learned counsel for the appellant relies on the judgment in the case of Rajana Prakash & Ors. vs. Divisional Manager and Another [(2011)14 SCC 639]. It is lastly submitted on behal